Allen v. Ottawa Police Service, 2006 CanLII 84681

OCCPS #06-06

ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES

Citation: Allen v. Ottawa Police Service, 2006 ONCPC 6

REASONS FOR DECISION

CONSTABLE MARCEL ALLEN

Appellant

OTTAWA POLICE SERVICE

Respondent

Presiding Members:

Sylvia Hudson, Vice Chair

David Edwards, Member

Appearances:

Allan R. O’Brien, Counsel for the Appellant

Robert E. Houston, Counsel for the Respondent

Hearing Date: Friday, April 12, 2006

This is an appeal from a penalty imposed on October 26, 2005 by retired Deputy

Chief Terrence Kelly (the “Hearing Officer”) following a decision on October 17,

2005, of guilt on one count of discreditable conduct contrary to section 2(1)(a)(xi) of the Code of Conduct (the “Code”), contained in the O. Reg. 123/98 as amended.

The penalty in question is a demotion to second-class constable for six months.

Background:

Constable Marcel Allen joined the Ottawa Police Service (the “Service”) in 1995. At the time of the events in question he was a first-class constable. Constable Allen’s employment history with the Service has not been without incident. It consists of three disciplinary matters.

The first was convictions for discreditable conduct and neglect of duty in May of

2002. The discreditable conduct charge resulted from Constable Allen being uncivil to a member of the Service during an incident at a restaurant. The neglect of duty charge arose due to his failure to submit a report in relation to a call for service. The disposition consisted of the imposition of several performance related conditions.

The second matter was informal discipline arising from three missed paid duties in 2003. As a result, in December of that year he was counselled and one of the specified requirements of the informal discipline was the retention on his personnel file for a period of two years following the date of completion of the requirements. This record would be removed after two years providing no other disciplinary action was taken during that time frame.

The third disciplinary matter was a conviction of neglect of duty in June of 2004, as a result of his failure to unload his issued firearm as required. It would seem that Constable Allen was in the men’s locker room and ejected a round from his firearm but failed to remove the magazine. Constable Allen then pulled the trigger and a bullet was discharged. He was penalized with a forfeiture of eight hours pay.

The facts giving rise to this charge arose on December 1, 2004. Constable Allen was assigned to security duty with respect to the arrival of the President of the United States of America. He concluded his duty at about 10:30 a.m. and drove his private vehicle northbound along Metcalfe Street in the City of Ottawa. He lost control and hit a construction fence, causing approximately $800.00 damage to the fence and $276.00 to his vehicle.

Constable Allen left the scene without reporting the accident and drove about 60 kilometers to an auto-body shop. He then drove to a walk-in medical clinic for treatment for an injured finger.

Constable Allen’s licence plate had fallen off at the scene of his accident and was found by a construction worker who reported it to the police. An investigation by Sergeant Fournier of the Service discovered that the motor vehicle belonging to Constable Allen was uninsured and had been since August 9, 2003. As well, the registration had expired on February 10, 2004. When questioned, Constable Allen admitted that he had been driving the vehicle and was aware of the expired permit and lack of insurance.

Subsequently, Constable Allen was charged under the Highway Traffic Act with: (1) failing to report an accident; (2) driving a motor vehicle without a validated permit; and (3) operating a motor vehicle without a contract of insurance. Constable Allen pled guilt to the latter two and was fined $2,500.00. The charge of failing to report an accident was withdrawn.

A Notice of Hearing dated March 8, 2005, was prepared and served on Constable Allen on March 11, 2005 charging him with acting in a “disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force”.

The specific allegation was that on December 1, 2004, he "failed to report a motor vehicle accident, drove a vehicle with no insurance and an expired validation tag … ”.

The hearing was held on October 17, 2005. Constable Allen pled guilty to the charge of discreditable conduct. The Hearing Officer heard arguments from counsel for both the Appellant and Respondent with respect to penalty. On October 26, 2005, the Hearing Officer imposed a penalty of demotion to second- class constable for six months pursuant to section 68(1)(c) of the Police Services Act R.S.O. 1990, C. p.15 as amended (the “Act”).

Appellant’s Position:

Mr. Allen R. O’Brien, Counsel for the Appellant, challenged the Hearing Officer's decision. He argued that the Hearing Officer:

1. erred by concluding that the Appellant drove the uninsured vehicle without a valid permit prior to the day in question;

2. erred by concluding that the Appellant did not show remorse, and

3. the penalty imposed was excessive given the circumstances of the case.

He also argued that the Hearing Officer failed to correctly identify, consider and weigh the relevant factors.

Mr. O’Brien addressed the appropriate standard of review of the Hearing Officer’s decision. He noted Plummer v Calgary (City) Police Service, [2004], A.J. No.

616 (Alb. C.A.) for the proposition that that standard is reasonableness

simpliciter.

He drew our attention to the Commission's decisions of Andrews and Midland Police Service, (1 May, 2003, O.C.C.P.S) at page 16 which states that the Commission has “the authority to vary a penalty if it is unreasonable, unjust or unfair or if all the relevant factors were not fairly or impartially considered.”

Mr. O’Brien also cited Monaghan and Toronto Police Service (1 May, 2003, O.C.C.P.S) which states at page 2 that “we can only interfere if there has been an error in principle or if we find that the Hearing Officer failed to adequately consider all of the factors before her."

Mr. O'Brien suggested that we bear in mind that the case against Constable Allen must be proven on "clear and convincing evidence”. Mr. O’Brien cited Blowes- Aybar and Toronto Police Service (12 August, 2003, O.C.C.P.S.) at page 3 which states that: “This evidence must be weighty and credible evidence upon which a trier of fact acting with care and caution can come to the fair and reasonable conclusion that the officer is guilty of misconduct."

Mr. O’Brien drew our attention to Lloyd and London Police Service (1999), 3

O.P.R. 1345 (O.C.C.P.S.) at page 1351 which he used to underscore his argument that "clear and convincing evidence … must be weighty, cogent and reliable".

With respect to the specific issues raised on this appeal, first, Mr. O’Brien submitted that the Hearing Officer erred when he concluded that Constable Allen or a member of his family drove his uninsured vehicle prior to the date of the accident. He argued that the Hearing Officer had no evidence to support his decision on that point. He suggested that the Hearing Officer’s improper inference adversely influenced the penalty imposed.

Second, Mr. O’Brien asserted that the Hearing Officer erred in not recognizing as evidence of remorse Constable Allen’s guilty plea to both the Highway Traffic Act and disciplinary charges. Mr. O'Brien argued that there is no evidence on which the Hearing Officer could rely on to reach the conclusion that Constable Allen did not display remorse for his actions.

In support of this argument, Mr. O'Brien drew our attention to Carson and Pembroke Police Service (2001), 3 O.P.R. 1479 (O.C.C.P.S.) at page 1484 where the Commission stated: “a guilty plea should be recognized as a mitigating factor and taken into account along with other factors in determining an appropriate penalty."

Third, Mr. O'Brien acknowledged that Constable Allen committed misconduct by driving his motor vehicle without insurance and valid registration. However, Mr. O’Brien asserted that a demotion to second-class constable for six months was harsh for a breach of a regulatory offence.

Mr. O'Brien asserted that the penalty imposed by the Hearing Officer is inconsistent with other decisions of the Commission. Mr. O'Brien took the position that a demotion of six months to a year is reserved for serious offences. In support of his argument, Mr. O’Brien brought several cases to our attention.

Schofield and Metropolitan Toronto Police (1984), 2 O.P.R. 613 (O.P.C.), Mason and Hamilton-Wentworth Regional Police Service (2000), 3 O.P.R. 1386 (O.C.C.P.S.), Kyle and York Regional Police Service (11 March, 2003, (O.C.C.P.S.), Cate and Peel Regional Police Service (1998), 3 O.P.R. 1257 (O.C.C.P.S.), Valois and Toronto Police Service (24 November, 2003, (O.C.C.P.S.), Stitt and York Regional Police Service (1997), 3 O.P.R. 1130 (O.C.C.P.S.), and Burdett and Guelph Police Service (1999), 3 O.P.R. 1336 (O.C.C.P.S.)

Mr. O'Brien concluded that a penalty of a forfeiture of 10 days or 80 hours would be more consistent with the principles of progressive discipline and consistency.

Respondent’s Position:

Mr. Robert E. Houston, Counsel for the Respondent, submitted that there were no errors in the Hearing Officer's decision and due to the seriousness of Constable Allen's misconduct, the penalty imposed was not unfair and was within the appropriate range.

As a preliminary matter, Mr. Houston addressed the appropriate standard of review. Mr. Houston directed our attention to Carson and Pembroke Police Service, supra with respect to the test to apply when reviewing penalties.

Mr. Houston then noted the Commission's decision of Reilly v Brockville Police Service (1997), 2 O.P.R 1163 (O.C.C.P.S.) at page 1169 in which the Commission identified three key criteria to be considered when imposing penalty. These include:

1. the nature and seriousness of the misconduct;

2. the ability to reform or rehabilitate the officer; and,

3. the damage to the reputation of the police force.

Mr. Houston then addressed the three issues raised by the Appellant's Counsel. With respect to the first issue, Mr. Houston submitted that the Hearing Officer did

not conclude that Constable Allen drove his uninsured and unregistered vehicle prior to the date of the accident. He asserted that the only evidence considered by the Hearing Officer was that Constable Allen drove his uninsured motor vehicle with an expired tag on December 1, 2004.

With respect to the second issue, Mr. Houston submitted that the Hearing Officer did not make a reviewable error by concluding that “There were no evident signs of remorse displayed in this tribunal by Constable Allen". Mr. Houston submitted that the Hearing Officer pointed out in his reasons that Constable Allen pled guilty to the charge.

Mr. Houston argued that while Constable Allen did not testify before the Hearing Officer, he did appear to plead guilty to the charge and, accordingly, the Hearing Officer was entitled to reach conclusions based on his observation of Constable Allen’s demeanor. To support his argument, Mr. Houston cited Regina v Owens (1986) 1986 CanLII 4690 (ON CA), 33 CCC (3d) 275 (Ont. C.A.). Mr. Houston argued that in this case the Court of Appeal has recognized that the trier of fact can consider the general demeanor of a witness in the courtroom.

On the final issue, Mr. Houston submitted that the Hearing Officer did not err in determining the penalty. He asserted that given the seriousness of Constable Allen's misconduct and his discipline record, the imposed penalty of six months

demotion of one rank was not unreasonable and falls within the range of appropriate findings.

Mr. Houston submitted that Constable Allen chose to drive an unregistered and uninsured vehicle. In and of itself, that would be a serious offence at any time. However, on the day in question, the President of the United States of America was visiting Ottawa and as a result, there was heightened security. This, in Mr. Houston’s opinion increased the seriousness of the offence.

Mr. Houston directed the Commission to consider the three key criteria identified above. He highlighted the seriousness of driving without insurance and with an expired validation tag. Mr. Houston submitted that the Hearing Officer gave the proper weight of Constable Allen's 11 years of service, and considered both his letters of appreciation and his disciplinary record.

Mr. Houston asserted that given the circumstances of the matter, a demotion of six months to second-class constable was appropriate and consistent with previous decisions of the Commission. He cited White and Reid and Windsor Police Service (2000), 3 O.P.R. 1434 (O.C.C.P.S.), Gregg and Midland Police Service (2001), 3 O.P.R. 1522 (O.C.C.P.S.) and Ozon and OPP (1998), 3 O.P.R.

1227 (O.C.C.P.S.).

Mr. Houston concluded by requesting that we dismiss the appeal and confirm the decision of the Hearing Officer.

Decision:

The finding of misconduct by the Hearing Officer is not in dispute. The issue before us concerns the appropriateness of the penalty imposed by the Hearing Officer.

The role of the Commission on appeal of penalty is clear and well established. As was noted in Carson and Pembroke Police Service (9 March, 2006, O.C.C.P.S.) at pages 14 and 15:

The factors to be taken into account when assessing a suitable penalty are well established. In Williams and Ontario Provincial Police this Commission identified three key elements. They include the nature and seriousness of the misconduct, the ability to reform or rehabilitate the officer, and the damage to the reputation of the police services that would occur if the officer remained on the force.

Further considerations can include the need for deterrence, provocation or concerns arising from management’s approach. Other factors can be relevant, either mitigating or aggravating a penalty, depending on the conduct in question. These include the

officer’s employment history and experience, recognition of the seriousness of the transgression and handicap or other relevant personal considerations.

In addition, when imposing a penalty, it is important to take into account prior disciplinary cases dealing with similar types of misconduct. This is to ensure consistency.

Our function in a disciplinary appeal is not to second-guess the hearing officer or substitute our own opinion. Rather, it is to assess whether or not the hearing officer fairly and impartially applied these principles and properly considered all relevant matters. Where there is a manifest error in principle or the proper factors are ignored, we may vary the disposition. This is not lightly done.

How then do these principles apply to this case?

First, the Appellant argued that the Hearing Officer erred by concluding that Constable Allen drove his vehicle in an uninsured state without valid registration prior to December 1, 2004. We have reviewed both the record and decision and there is no evidence that the Hearing Officer reached such a conclusion.

We note that during the course of the disciplinary hearing Counsel for the Appellant specifically advised the Hearing Officer: “There is no admission that he was driving the vehicle for fifteen months without insurance … The issue before you is the driving on the day in question.”1 In response, Counsel for the Service stated: “One can draw an inference that at least it’s conceivable that in the

fifteen month period the vehicle was on the road, operated by someone, whether

Constable Allen or a member of his family, with or without insurance.”2

However, the only reference to this in the Hearing Officer’s decision was as follows: “Leaving the scene of an accident, having an expired validation tag for nine months, and no motor vehicle insurance for fifteen months, makes this trier- of-fact wonder what this officer was thinking.”3 This is clearly a finding of fact with respect to conduct on December 1, 2004 and not prior occasions.

Second, the Appellant submitted that the Hearing Officer made a reviewable error when he stated: “There were no evident signs of remorse displayed in this tribunal by Constable Allen”.4 However, the Hearing Officer did note in his decision that Constable Allen had pled guilty to the charge of discreditable conduct.5 He further noted that Constable Allen pled guilty to the Highway Traffic

1Transcript of Disciplinary Hearing, 17 October, 2005, pages 5 and 6.

2Ibid., page 13.

3Transcript of Disciplinary Hearing, 26 October, 2005, page 3.

4Ibid., pages 3 and 4.

Act charges of driving a motor vehicle without a current validation permit and being the owner and operator of a motor vehicle without the motor vehicle being insured.6

This Commission has held that a guilty plea should always be recognized as a mitigating factor and that giving no weight to a guilty plea is an error in principle. Carson and Pembroke Police Service

We have reviewed the decision in detail. Although the Hearing Officer acknowledged the guilty pleas, he does not specifically state that he considered them to be a mitigating factor, nor does he state that he did not give any weight to the guilty plea, as was the case in Carson. It would have been preferable if the Hearing Officer had specifically stated that he considered the guilty plea to be a mitigating factor.

In this regard, however, we are mindful of the principle reflected by the Ontario Court of Justice in Galassi v. Hamilton (City) Police Service [2005] O.J. No. 2301 (Ont. Div. Ct.) at paragraph 19:

In reviewing the reasons of a lay tribunal, the task of this Court is not to be overly critical of the language used, nor is it to focus on mistakes that do not affect the decision as a whole (Re Del Core and Ontario College of Pharmacists (1985), 1985 CanLII 119 (ON CA), 51 O.R. (2d) 1 (Ont. C.A.). This approach must be kept in mind when the reasons of the Hearing Officer are examined, as he is not legally trained.

This is the approach that we have adopted.

Further, in light of Regina v. Owens, we are not satisfied that the Hearing Officer’s passing comment on the absence of any visible display of remorse at the hearing negated the mitigating aspect of the officer’s guilty pleas or rises to the level of error in principle that would warrant our intervention.

Third, the Appellant argued that the six month demotion was excessive in the circumstances. The Hearing Officer considered Constable Allen’s eleven years of service. He acknowledged Constable Allen’s seven letters of appreciation and stated: “This alone would have me lean towards a less penalty than I otherwise would consider when dealing with an officer in similar circumstances”.7

However, counter-balancing this factor was the prior discipline record of Constable Allen. The Hearing Officer further stated that “I wish to make it very clear that my considerations in arriving at a fair and reasonable disposition are directed by an appreciation of the seriousness of the actions that actually took place; a consideration of the general deterrent value of the penalty as a

6 Ibid., page 2.

statement to all police officers of the values of this Police Service; and a statement to the community at large of their commitment to these values.”8

We agree with the Hearing Officer that the charge against Constable Allen constituted serious misconduct. The facts are that while Constable Allen was off duty, he drove his unregistered, uninsured motor vehicle during the heightened security visit of the President of the United States of America. Further, this was the fifth disciplinary action against Constable Allen in three years.

We hold that the Hearing Officer properly considered and applied the principle of progressive discipline in conjunction with all of the other appropriate sentencing factors.

As stated above, we may vary the Hearing Officer’s decision in the presence of a manifest error in principle or if the proper factors are not considered. We find that the Hearing Officer considered the proper factors and that there was no error in principle.

The penalty imposed is not unreasonable or outside of the range of penalties available to the Hearing Officer. Accordingly, we dismiss the appeal and confirm the decision of the Hearing Officer.